130
H. Zhang
self-consciously follow certain requirements when applying the straight baselines
to mid-ocean archipelagos. Although the relevant provisions of LOSC with regard
to mainland straight baselines and archipelagic baselines cannot constitute the apt
legal basis for dependent archipelagic baselines, several common principles can be
extracted and become the guidelines governing the application of this sui generis
baseline. To ease the concerns or criticism from other States, it is of significant
benefit for the States concerned to make reference to these common principles.
As Evensen aptly pointed out in 1958, “Frequently the only natural and practical solution is to treat such outlying archipelagos as a whole for the delimitation of territorial waters by drawing straight baselines from the outmost points
of the archipelagos…Whether or not an outlying archipelago should be treated in
such a manner will, to a large extent, depend on the geographical features of the
archipelago”.
55 Under general international law, China is entitled to apply straight
baselines to its mid-ocean islands. Its existing practice with regard to Xisha/Paracel
Islands and Diaoyu Islands remains within the scope of legality and legitimacy, in
light of the common principles enshrined in the system of straight baselines as well as
the relevant state practice since the last century. In retrospect, it is the general experience that China’s proclamation of straight baselines of mid-ocean archipelagos
constitutes a part of its countermeasures against other neighboring states’ enhancement of control over the disputed islands. Thus, the escalation of the South China
Sea dispute could provoke China to proclaim the straight baselines of other groups
of islands in this region, though it has to overcome certain geographical, legal and
political barriers. From the proactive perspective, the better way forward for all the
disputing parties bordering the South China Sea is to exercise self-restraint and resort
to joint development before the final settlement of dispute.
56
References
Ashley Roach, J. (2013). China’s straight baseline claim: Senkaku (Diaoyu) Islands. ASIL Insights,
Vol. 17, Issue 7, February 13, 2013, p. 5.
Ashley Roach, J. (2018). Offshore archipelagos enclosed by straight baselines: An excessive claim?
Ocean Development and International Law, Vol. 49, 2018, pp. 197–202.
Beckman, R., & Schofield, C. H. (2014). Defining EEZ claims from islands: a potential south china
sea change. International Journal of Marine and Coastal Law, 29, 210–211.
Chinese Society of International Law. (2018). South china sea arbitration awards: A critical study.
Chinese Journal of International Law, 17, 487–492.
Churchill, R. R., & Lowe, A. V. (1999). The law of the sea, 3rd Edition. Manchester University
Press, p. 120.
55 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters
of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law
of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 302.
56 See Hua Zhang, “The Duty of Cooperation in Semi-Enclosed Seas: Exploring the Way Forward
for South China Sea”, in Keyuan Zou (ed.), Maritime Cooperation in Semi-Enclosed Seas: Asia
and European Experiences, Brill, 2019, pp. 39–40.
H. Zhang
self-consciously follow certain requirements when applying the straight baselines
to mid-ocean archipelagos. Although the relevant provisions of LOSC with regard
to mainland straight baselines and archipelagic baselines cannot constitute the apt
legal basis for dependent archipelagic baselines, several common principles can be
extracted and become the guidelines governing the application of this sui generis
baseline. To ease the concerns or criticism from other States, it is of significant
benefit for the States concerned to make reference to these common principles.
As Evensen aptly pointed out in 1958, “Frequently the only natural and practical solution is to treat such outlying archipelagos as a whole for the delimitation of territorial waters by drawing straight baselines from the outmost points
of the archipelagos…Whether or not an outlying archipelago should be treated in
such a manner will, to a large extent, depend on the geographical features of the
archipelago”.
55 Under general international law, China is entitled to apply straight
baselines to its mid-ocean islands. Its existing practice with regard to Xisha/Paracel
Islands and Diaoyu Islands remains within the scope of legality and legitimacy, in
light of the common principles enshrined in the system of straight baselines as well as
the relevant state practice since the last century. In retrospect, it is the general experience that China’s proclamation of straight baselines of mid-ocean archipelagos
constitutes a part of its countermeasures against other neighboring states’ enhancement of control over the disputed islands. Thus, the escalation of the South China
Sea dispute could provoke China to proclaim the straight baselines of other groups
of islands in this region, though it has to overcome certain geographical, legal and
political barriers. From the proactive perspective, the better way forward for all the
disputing parties bordering the South China Sea is to exercise self-restraint and resort
to joint development before the final settlement of dispute.
56
References
Ashley Roach, J. (2013). China’s straight baseline claim: Senkaku (Diaoyu) Islands. ASIL Insights,
Vol. 17, Issue 7, February 13, 2013, p. 5.
Ashley Roach, J. (2018). Offshore archipelagos enclosed by straight baselines: An excessive claim?
Ocean Development and International Law, Vol. 49, 2018, pp. 197–202.
Beckman, R., & Schofield, C. H. (2014). Defining EEZ claims from islands: a potential south china
sea change. International Journal of Marine and Coastal Law, 29, 210–211.
Chinese Society of International Law. (2018). South china sea arbitration awards: A critical study.
Chinese Journal of International Law, 17, 487–492.
Churchill, R. R., & Lowe, A. V. (1999). The law of the sea, 3rd Edition. Manchester University
Press, p. 120.
55 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters
of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law
of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 302.
56 See Hua Zhang, “The Duty of Cooperation in Semi-Enclosed Seas: Exploring the Way Forward
for South China Sea”, in Keyuan Zou (ed.), Maritime Cooperation in Semi-Enclosed Seas: Asia
and European Experiences, Brill, 2019, pp. 39–40.